IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30963

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ALTON DUNCAN BRIDGES,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

June 27, 1997

Before DAVIS, STEWART and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The United States of America (the “Government”) appeals the district court’s resentencing

of Defendant Alton Duncan Bridges (“Bridges”) to five year’s supervised relea se for the cri m e of

possession of child pornography in violation of 18 U.S.C. § 2252(a)(4). The Government argues that

the district court’s original sentence of 15 months’ imprisonment became effective upon imposition

of sentence thereby terminating the district court’s abilit y to resentence Bridges, and that the

downward departur e fro m t he sentencing guideline range was a clear abuse of discretion. The

Government requests this court to vacate the new sentence and reinstate the original sentence of 15

months’ imprisonment. For the following reasons, we reverse and remand for reinstatement of the

original sentence.

FACTUAL B ACKGROUND A ND P ROCEDURAL H ISTORY

On March 28, 1996, Bridges plead guilty to a one count of bill of information charging him

with knowingly possessing child pornography in violation of 18 U. S.C. § 2252(a)(4). Bri dges1 Bridges was also sentenced to three years of supervised release, fined $4,000 and charged a $50 assessment

earmarked for the Victims Witness fund.

2 admitted to having traded child pornography over computer lines with five individuals and to having

mailed a blank videotape to Ohio for duplication of a tape containing child pornography. A United

States Probation Officer prepared a pre-sentence report (“PSR”) placing Bridges in Criminal History

Category I with an adjusted offense level of 17, however, Bridges received a three level downward

adjustment for acceptance of responsibility, making his total offense level 14. Under these guidelines,

Bridges sentencing range was 15-21 months’ imprisonment, followed by 2-3 years supervised release,

and a fine range of $4,000 to $40,000. Bridges objected to the PSR, specifically taking issue with

the probation officer’s conclusion that there were no factors present which warranted a departure

from the recommended sentencing range. Bridges supplied the officer with a report from two doctors

stating that he suffered from a “schizoid personality disorder.” In response to this information, the

probation officer amended the report, attaching a copy of the doctor’s findings, however, the PSR

did not address whether Bridges mental condition warranted a downward departure.

Prior to sentencing, Bridges requested a downward departure on the grounds that (1) he had

suffered a loss of income when his employment had been terminated as a result of the charges; (2)

he had a long and stable employment history; (3) his act io ns amounted to nothing more than

“aberrant” behavior; and (4) he suffered from a “schizoid personality disorder .” However, at the

sentencing hearing on June 20, 1996, the district court rejected Bridges’s motion for downward

departure stating that:

. . . except for my disagreement with the guidelines in this case, I cannot come up

with any reason to downward depart

. . . . I feel absolutely bound by the law and the

guidelines, and if I could I would, but there’s no point in me departing downward and

then it being appealed, because I’ll get reversed.

The court then sentenced Bridges to a term of 1 5 mo nt hs’ imprisonment, the minimum sentence

available under the guideline range. 1 Bridges was released on bond until July 22, 1996, the date he

was ordered to report to pri son.2 In resentencing Bridges, the district court did not articulate the legal basis for his decision.

3 Bridges filed a motion to stay entry of judgment and a motion to reconsider the sentence on

June 21, 1996 which was accepted and entered by the court on June 24, 1996. Pursuant to the

motion, the district court scheduled a hearing for August 9, 1996. At that hearing, the court received

testimony from a defense expert that Bridges suffered from “schizoid personality disorder” and did

not pose a danger to children “at this point.” Following the testimony, the district court announced

its intent to downward depart from the sentencing guidelines. After recalling the previous judgment,

the district court resentenced Bridges to five years supervised release with the first six months being

served in prison. 2 The judgment was entered on August 13, 1996. Subsequently, the Government

filed a motion to set aside the second sentencing, however, the district court denied the motion. The

government timely appealed.

D ISCUSSION

We review de novo whether the district court had jurisdiction to resentence. S ee, e.g., United

States v. Lynch , ___ F.3d ___ (5th Cir. 1997).

On appeal, the Government contends that the district court was without jurisdiction to correct

or modify Bridges’s sentence because a district court’s authority to correct or modify a sentence is

limit ed to those specific circumstances enumerated by Congress in 18 U.S.C. § 3582(b). We agree.

18 U.S.C. § 3582 (b) authorizes the district court to modify a previously imposed sentence

in a limit ed number of ci

rcumst ances, such as: (1) when the court receives a motion from the

Director of the Bureau of Prisons indicating there are extraordinary and compelling reaso ns

warranting a reduction and that reduction is consistent with applicable policy statements issued by

the Sentencing Commission; (2) pursuant to Rule 35(c) of the Federal Rules of Criminal Procedure

the district court, acting within 7 days after the imposition of sentence, corrects an arithmetical,

technical, or other clear error identified in a previously imposed sentence; and (3) when a defendant3 The Advisory Committee’s Notes to Rule 35(c) expressly states that Rule 35(c) is “intended to be very narrow

and to extend only to those cases in which an error or mistake has occurred in the sentence, that is errors which would

most certainly result in remand of the case to the trial court for further action under Rule 35(a). The subdivision is not

intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines

or for the court to simply change its mind about the appropriateness of the sentence.” F ED . R. C RIM

. P. 35 advisory

committee’s notes.

4 who has been sentenced to a t erm o f imprisonment based upon a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(b).

Here, the district court failed to announce the basis for its decision; however, analyzing the

facts in the context of 18 U.S.C. § 3582(b), it must be concluded that the court was acting pursuant

to Rule 35(c). Under Rule 35(c), the district court’s authority to modify a previously imposed

sentence is limit

ed to corrections o f “arit hmetical, technical or other clear error.” Moreover, such

modifications must occur within the seven-day window immediately following the imposition of the

original sentence. We have strictly construed the seven-day period for modifications under Rule

35(c). United States v. Lopez , 26 F.3d 512, 515 (5th Cir. 1994) .

The district court originally sentenced Bridges to 15 months’ imprisonment on June 20, 1996.

On August 9, 1996, the district court resentenced Bridges to five years probation, ordering the first

six-months to be served in prison. There is no evidence of arithmetical o r t echnical error in the

original sentence. A review of the record indicates that the district co urt ’s mo dification of the

sentence stems from its disagreement with the Sentencing Guideline. 3 Moreover, we must note that

the district court’s modification of Brid ge’s sent ence occurred approximately 50-days after the

imposition of the init

ial sentence, clearly outside the seven-day window. Thus, we conclude that the

district court lacked jurisdiction to resentence Bridges.

Finding no evidence that the district court’s modification was premised upon an arithmetical,

technical, or other clear error and that the attempted modification occurred outside of the seven-day

period authorized under Rule 35(c), we hold that the district court lacked jurisdiction to correct or

modify Bridg es’s initial sentence. Therefore, we REVERSE and REMAND this case for

reinstatement of the initial sentence of 15 months’ imprisonment.5

REVERSE and REMANDED.